From the Kentucky Open Government Coalition
An article in the Wisconsin State Journal reminds us that the issue of access to university records relating to investigations into sexual harassment by faculty and staff has yet to be finally resolved by Kentucky’s courts.
The open records lawsuit pitting Western Kentucky University against the University of Kentucky student newspaper, The Kernel, and it’s own student newspaper, The College Heights Herald, remains in Warren Circuit Court. This follows a 2017 Kentucky attorney general’s ruling that WKU improperly relied on the Family Educational Rights and Privacy Act as the basis for withholding sexual harassment investigative records.
In a separate lawsuit pitting UK against the Kernel, the Kentucky Court of Appeals in 2019 affirmed a 2016 attorney general’s decision, reversed a local judge's opinion, and ultimately rejected UK’s claim that FERPA protects university investigative records into allegations of sexual harassment.
However, the court returned that lawsuit against the Kernel to Fayette Circuit Court for further review on other privacy issues. There it remains.
The court slammed UK for failing to “fulfill its statutory mandates under the Act” and making no “attempt to comply with the Open Records Act in any meaningful way.”
Rejecting the suggestion that the Kernel was motivated by “simple curiosity,” the court recognized that “the public has an interest in the investigatory method used by its public agencies and to know that a publicly funded university has complied with all state and federal laws.”
It criticized the university for taking “the indefensible position that the records are exempt because it says they are and it must be believed.”
The University of Wisconsin case presents similar facts and similar illegal university secrecy. It involves a tenured ecology professor who retired in the midst of an investigation that confirmed allegations of sexual harassment.
Neither the professor nor his victims were satisfied by the university’s investigation and subsequent “cover up.”
Echoing the Kentucky Court of Appeals in the UK v. Kernel case, Frank LaMonte, director of the Brechner Center for Freedom of Information at the University of Florida and former director of the Student Press Law Center, observes: “There’s a compelling public interest in the investigative process. The public needs to be able to see that cases are being taken seriously, processed promptly and dealt with appropriately. If you cannot see the records, the university is left on a ‘trust me’ honor system. We know from experience that the ‘trust me’ honor system doesn’t always work.”
Bill Lueders, president of the Wisconsin Freedom of Information Council, notes that release of redacted records helps the public assess how fair the investigation was to both parties: “This is a case in which a public employee’s misconduct was affirmed by an investigation. The public has a right to know what that misconduct was beyond ‘sexual harassment,’ which could mean anything and include a wide range of behavior.”
An article in the Wisconsin State Journal reminds us that the issue of access to university records relating to investigations into sexual harassment by faculty and staff has yet to be finally resolved by Kentucky’s courts.
The open records lawsuit pitting Western Kentucky University against the University of Kentucky student newspaper, The Kernel, and it’s own student newspaper, The College Heights Herald, remains in Warren Circuit Court. This follows a 2017 Kentucky attorney general’s ruling that WKU improperly relied on the Family Educational Rights and Privacy Act as the basis for withholding sexual harassment investigative records.
In a separate lawsuit pitting UK against the Kernel, the Kentucky Court of Appeals in 2019 affirmed a 2016 attorney general’s decision, reversed a local judge's opinion, and ultimately rejected UK’s claim that FERPA protects university investigative records into allegations of sexual harassment.
However, the court returned that lawsuit against the Kernel to Fayette Circuit Court for further review on other privacy issues. There it remains.
The court slammed UK for failing to “fulfill its statutory mandates under the Act” and making no “attempt to comply with the Open Records Act in any meaningful way.”
Rejecting the suggestion that the Kernel was motivated by “simple curiosity,” the court recognized that “the public has an interest in the investigatory method used by its public agencies and to know that a publicly funded university has complied with all state and federal laws.”
It criticized the university for taking “the indefensible position that the records are exempt because it says they are and it must be believed.”
The University of Wisconsin case presents similar facts and similar illegal university secrecy. It involves a tenured ecology professor who retired in the midst of an investigation that confirmed allegations of sexual harassment.
Neither the professor nor his victims were satisfied by the university’s investigation and subsequent “cover up.”
Echoing the Kentucky Court of Appeals in the UK v. Kernel case, Frank LaMonte, director of the Brechner Center for Freedom of Information at the University of Florida and former director of the Student Press Law Center, observes: “There’s a compelling public interest in the investigative process. The public needs to be able to see that cases are being taken seriously, processed promptly and dealt with appropriately. If you cannot see the records, the university is left on a ‘trust me’ honor system. We know from experience that the ‘trust me’ honor system doesn’t always work.”
Bill Lueders, president of the Wisconsin Freedom of Information Council, notes that release of redacted records helps the public assess how fair the investigation was to both parties: “This is a case in which a public employee’s misconduct was affirmed by an investigation. The public has a right to know what that misconduct was beyond ‘sexual harassment,’ which could mean anything and include a wide range of behavior.”
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